9911796707
TMI Blog2012 (12) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... ions issued in this behalf, to the appellants-assessees, cannot be construed as mere production and trade incentives, as held by the Tribunal - receipt are capital receipt - Decided in the favour of the assessee. Decision in Shree Balaji Alloys v. CIT [2011 (1) TMI 394 - JAMMU AND KASHMIR HIGH COURT] followed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2011 respectively (copies of both the orders have been filed at pages 112 to 138 of the PB). He also pointed out that Revenue moved a Miscellaneous Application before the Hon'ble J & K High Court, against the orders in case of Shree Balaji Alloys (supra) (where assessee was also a party) which was also dismissed by the Hon'ble Court vide order dated 04.04.2012 (copy of which is filed at pages 102 to 111 of the paper book). The Ld. Counsel of the assessee further argued that the issue is identical to the issue decided by the Hon'ble J & K High Court and even Special Bench of the Tribunal is bound by the decision of the Hon'ble Jurisdictional High Court of J & K. He also clarified that since assessee's industrial unit is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009, dated 26.11.2009] by observing that the Tribunal has considered all the aspects of the issue. It is observed that assesse's unit is located in Jammu and assessee is also being assessed to tax in Jammu, therefore, the decision of Hon'ble J & K High Court in the case of Shree Balaji Alloys (supra) (where even assessee was also one of the party) has to be treated as decision of Jurisdictional High Court, which is binding on us. No doubt, the Hon'ble Supreme Court, has admitted the SLP against this decision vide order dated 18.11.2011, but no stay has been granted against the operation of the order of J & K High Court. Therefore, in our considered opinion, the decision of the Hon'ble J & K High Court in the case of Shree B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be available only on production of certificate from general manager of the concerned District Industries Centre to the jurisdictional Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, to the effect that the unit had created required additional regular employment, which would not, however, include employment provided by the industrial units to daily wagers or casual employees engaged in the units. 29. A close reading of the Office Memorandum and the amendment introduced thereto with paragraph No. 3 appearing in the Central Excise Notification Nos. 56 and 57 of November 11, 2002, thus, makes it amply clear that the acceleration of development of industries in the State was conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wardness of the area that lagged behind in industrial development, which is certainly a purpose in the public interest, the incentives provided by the office memorandum and statutory notifications issued in this behalf, to the appellants-assessees, cannot be construed as mere production and trade incentives, as held by the Tribunal. 33. Making of additional provision in the scheme that incentives would become available to the industrial units, entitled thereto, from the date of commencement of the commercial production, and that these were not required for creation of new assets cannot be viewed in isolation, to treat the incentives as production incentives, as held by the Tribunal, for the measure so taken, appears to have been intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved earlier, we hold that refund of excise duty is to be treated as capital receipt in the hands of the assessee. Accordingly, the first question is decided in favaour of the assessee. 7.In respect of second question, it was observed by the Hon'ble J & K High Court at para 37, as under: "37. In view of our above finding on the first issue, there is no need to opine on the second issue, which was raised in the alternative." 8. Therefore, in view of the above observations and the fact that once refund of excise duty is held to be of capital nature then there is no need to decide the second question. 9. During hearing it was further observed that in this appeal basically dispute was in respect of nature of excise duty refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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